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The On-Again, Off-Again Indictment of Devyani Khobragade by the US Attorney. Why?

The pillars of the Devyani Khobragade saga are by now well-known. She was arrested by federal agents in New York in December 2013. On January 9, a federal grand jury indicted her on one count of visa fraud and one count of making false statements. Ms. Khobragade filed a motion to dismiss the charges, claiming she was “cloaked in diplomatic immunity at the time of her arrest,” according to court documents. On Monday March 10, 2013, Judge Shira Sheindlin dismissed the charges, finding that Ms. Khobragade was “appointed a Counselor to the Permanent Mission of India to the United Nations, a position that cloaked her with full diplomatic immunity”. Ms. Khobragade was appointed to that position on January 8, 2013, one day before her first indictment. On Wednesday March 12, 2013, Ms. Khobragade was again indicted on the same charges and a warrant was issued for her arrest.

The indictment of Ms. Khobragade is replete with patronizing references towards Ms. Richard, who is referred to throughout as “Victim”. According to the indictment, Ms. Richard went to Ms. Khobragade’s residence for an interview for a position of housekeeper and child-carer. This was followed by a second interview, to which Ms. Richard was accompanied by her husband. Negotiations for salary took place, and Ms. Richard successfully increased the initial offer of Rs. 20,000 per month to Rs. 30,000 per month. A visa application was then submitted for Ms. Richard to the US Embassy in India. Ms. Richard appeared for interview at the Embassy, but was told that an employment contract was required for the interview. She was not accompanied by Ms. Khobragade to this interview. Ms. Richard subsequently returned for another interview, this time with an employment contract. Again, she was not accompanied by Ms. Khobragade. According to the indictment, Ms. Richard and Ms. Khobragade prepared for the second interview together, after which Ms. Richard substantiated the terms of the employment contract at her interview. The indictment goes on to state that Ms. Richard and Ms. Khobragade then executed a second employment contract reflecting their negotiated terms, which differed from the contract submitted in support of Ms. Richard’s visa application, or, as the indictment states, “[u]pon arriving at the Khobragade India Residence, KHOBRAGADE told the Victim that the Victim needed to sign another employment contract (the “True Employment Contract”), which contained the terms that the Victim and KHOBRAGADE had verbally agreed to in October 2012.” The “fake contract” provided for a 40-hour workweek at $9.75 per hour and paid sick leave, holidays and overtime. The “true contract” contained none of these provisions. Ms. Richard signed the “true contract” before leaving India, not while she was within the apparently hostile clutches of the Khobragade household.

According to the indictment, “[p]rior to the Victim’s commencement of her employment for KHOBRAGADE, the Victim had provided KHOBRAGADE with the Victim’s personal passport. KHOBRAGADE never returned the Victim’s passport.” This assertion defies reason. According to the indictment, Ms. Richard “provided KHOBRAGADE” with her passport while still in India, so that her visa application could be made. It is difficult to see how she then managed to travel to the U.S. and pass border control if “KHOBRAGADE never returned the Victim’s passport”.

The indictment then dramatically asserts that “[o]n or about November 15, 2012, and as a direct result of KHOBRAGADE’s fraud, including her creation of the Fake Employment Contract, the Victim received an A-3 visa.” The “Victim’s” participation in the fraud is not mentioned.

According to the indictment Ms. Khobragade “did not want to pay the Victim the required wages under U.S. law or provide the Victim with other protections against exploitative work conditions mandated by U.S. law”. But apparently, Ms. Richard also freely accepted employment on these terms. The “true contract” accurately reflected her negotiated terms, while she was on home turf, and fortified by the presence of her husband. Obviously, the U.S. has its own laws which it can enforce. But the characterization of Ms. Richard as “Victim” in the context of her salary or her interactions with the U.S. Embassy seems curiously strained.

The indictment continues, stating “[a]t KHOBRAGADE’s request and direction, this fraudulent employment agreement was submitted to the U.S. Embassy in India in connection with the Victim’s visa application on November 14, 2012.” Another way to represent this might be that Ms. Richard executed a “fraudulent employment agreement” with Ms. Khobragade which she submitted in support of her visa application during an interview she attended without Ms. Khobragade. As the indictment then notes, “[t]he Victim then obtained a visa on the basis of the fraudulent employment agreement.”

The indictment states that Ms. Richard was required to work long hours with limited time off and that “KHOBRAGADE denied her requests” to resign. But Ms. Khobragade is not charged with violation of labor laws. She is charged with visa fraud.

Eventually, Ms. Richard left the Khorbagade residence and sought assistance from Safe Horizon, which provides legal representation on immigration matters. Ms. Richard has been granted “continued presence,” a legal status given to those co-operating with authorities. Ms. Richard’s family, allegedly with the assistance of these authorities, has joined her in New York. Subsequently, Ms. Khobragade filed charges of for fraud, willful deceit, harassment and extortion against Ms. Richard and her husband in India.

The tale of Ms. Richard and Ms. Khobragade illustrates the severely distasteful aspects of domestic employment in India, which continue despite the economic boom India has experienced in recent years. Live-in “housekeepers” earn about Rs. 9,000 a month, while live-in cleaners earn Rs. 5,000-7,000. They sleep on thin roll-out mattresses on the floor. They are never off-duty, except for a sporadic hour or so. Against this scenario, Ms. Richard negotiated a salary of Rs. 30,000 per month. While the conditions that force the need that drives a person to accept employment for inhumanly long hours for ridiculously low pay is unspeakably deplorable, to Ms. Richard, the salary she negotiated might well have appeared princely. She made the difficult decision to leave her home and family in order to obtain this salary. It sits ill for the U.S. Attorney to belittle her efforts by denying her the dignity of her name and refer to her simply as “Victim”. It sits ill for the U.S. Attorney to imply that she was incapable of making these choices in her best interests. The conclusion that she fully and voluntarily participated in the conduct for which Ms. Khobragade now faces charges is almost inescapable. It sits ill for the U.S. Attorney to characterize a woman capable of successfully negotiating an Embassy interview as a witless dupe.

India is a country of deal-makers. Buying food involves negotiations, as does buying anything else. Traffic tickets are often dismissed sua sponte by police officers after the expected haggling. Obtaining housing, utilities, permits require the art of offer and counter-offer. Deal-making is considered the necessary lubrication of the wheels of bureaucracy. “Burdensome” laws are often considered merely obstacles to overcome. The individual knows best, it is said with a shrug, and the agreement between individuals is given informal supremacy. Against this cultural backdrop, Ms. Richard and Ms. Khorbagade struck a deal that suited both, and participated in the means to effectuate that deal. Ms. Richard received a salary almost 400% higher than she could otherwise expect. Ms. Khobragade received labor at a rate vastly lower than American rates. When the deal ceased to work for Ms. Richard, she left, apparently without difficulty. She apparently had the freedom to move in and out of the Khobragade residence. Why, with so many egregious violations of labor laws in New York that go uninvestigated, with the many large-scale immigration frauds, is the U.S. Attorney expending its resources on two charges of “visa fraud” in which the “Victim” obviously freely participated? And how is Ms. Richard the “Victim” of visa fraud?